LANIER v. THE STATE OF NEW YORK, #2006-028-001, Claim No. 106528

Synopsis

A prison inmate who was given permission to attend a relative's funeral but not
allowed to do so through administrative error cannot prove the type of special
circumstances necessary to give rise to a cause of action for negligent
infliction of emotional distress.

At trial of this action, held at Coxsackie Correctional Facility, Claimant
Cordell Lanier testified that on June 26, 2002, he was advised by the facility
imam that his younger brother, Jasper, had been murdered the previous day in
Rochester, New York. Claimant applied for permission to attend his brother's
wake, which was to be held on June 30, and funeral, which was scheduled for July
1, and, in accordance with the authority afforded by Correction Law

§ 113, the prison Superintendent granted permission for such a
visit. Despite this approval of his request, Claimant was never released to
attend the wake and funeral.

Defendant acknowledges that the failure to temporarily release Claimant to
attend his brother's funeral was the result of an undetermined administrative
error. Anne Greene, an Inmate Records Coordinator II, testified that once a
funeral or deathbed visit is approved by the Superintendent, she is notified and
then takes care of the paperwork necessary for the visit to occur. In this
case, however, she did not receive the notification that claimant's temporary
release had been approved (Exhibit 1) until after the date on which Jasper
Junious's funeral had been held. She had no explanation for the delay and
admitted that it was a mistake for the approval to have been held up.

Correction Law § 113 provides that the Commissioner of Correctional
Service (or his designee) "may permit" an inmate, other than an inmate under a
sentence of death, to make a deathbed visit or attend the funeral service of a
parent or guardian, child, sibling or other enumerated close
relatives.[1]

It is well established that a prisoner does not have an enforceable right to
such leave, as the Commissioner's decision is purely discretionary (Rivera v
State of New York, 169 AD2d 885 [3d Dept 1991], lv denied 77 NY2d 807
[1991]). The issue presented here, however, is not whether the Commissioner had
the power to deny such a visit but whether, once such permission had been
granted, the State assumed a duty to carry it out and, if so, whether it can be
held liable in money damages for failure to do so.

A review of caselaw reveals only two other instances in which a similar claim
has been made. In the first, correctional officials affirmatively decided not
to transport the inmate to his mother's funeral because two emergencies had
arisen in the facility where he was housed. That claim was dismissed upon a
determination that "it has simply not been established that the discretionary
refusal to halt Claimant's funeral visit was an action taken in bad faith or
without a reasonable basis" (

The second instance was similar to the situation presented here, where the
failure to release an inmate to attend a relative's funeral, after permission to
do so had been granted, was the result of an unexplained oversight on the part
of correction officials (

Howard v State of New York (Ct Cl, Collins, J., Motion No. M-64431, UID
#2002-015-231, March 11, 2002). There, the Court acknowledged that in some
situations an unexcused breach of a ministerial duty of this nature could lead
to liability, citing to Kagan v State of New York (221 AD2d 7 [2d Dept
1996] [State liable for failure to follow established administrative protocols
in providing medical treatment to inmates]; Ostrowski v State of New
York, 186 Misc 2d 890 [State liable for a clerk's failure to mark court
records accurately]). Permission to late file that claim was denied, however,
on the ground that the circumstances of the injury to the inmate did not rise to
the level necessary to impose liability for the negligent infliction of
emotional distress, relying on Dobisky v Rand, (248 AD2d 903 [3d Dept
1998] ["A claim for negligent infliction of emotional distress requires a
showing that defendants' conduct unreasonably endangered plaintiffs' physical
safety or, as exceptions to this rule, that untruthful information regarding
death was transmitted or that a corpse was negligently mishandled" (id.
at 905)]).

In the instant action, Claimant has sought recovery for the following
categories of injury: emotional distress, [sense of] well being, sense of
enjoyment of persons, mental anguish, stress and spiritual ennui (Claim,
attached schedule of damages). At trial, he testified, compellingly, about his
upset, depression, anger and loss of trust that resulted from the administrative
mishandling of his request. These injuries, while undoubtedly real and painful,
are not the type of psychic harm that can support a cause of action for
negligent infliction of emotional distress.

To recover for negligent infliction of emotional distress, the injured party
must prove, among other things, " ‘extreme and outrageous conduct' [on the
part of defendant]" and that he or she suffered "severe emotional distress"
(

Howell v New York Post Co., 81 NY2d 115, 121 [1993]). Recovery for this
type of injury, particularly where there is no related physical injury and no
imminent risk to the injured party's safety, has been limited to truly
exceptional circumstances where the emotional injury is a direct, rather than a
consequential, result of an official's negligent act (Kennedy v McKesson
Co., 58 NY2d 500, 506 [1983]) and where special circumstances exist. The
Court of Appeals recently summarized this area of the law as follows:

One to whom a duty of care is owed may recover for injuries sustained as a
result of negligently caused psychological trauma so long as consequential
physical manifestations of trauma exist (Johnson v State of New York, 37
NY2d 378, 381). Requiring physical manifestations, rather than emotional
symptoms alone, is thought to provide an index of reliability (id.). This
Court has recognized several exceptions to the rule requiring physical symptoms,
however. One may recover for the emotional harm resulting from (1) the negligent
transmission by a telegraph company of a message announcing death (id.,
at 382), (2) the negligent misinformation to a next of kin regarding the death
of a relative (id.; see also, Rotondo v Reeves, 153 Misc 2d
769[father could maintain action to recover damages for emotional distress from
coroner's mistaken identification of family's pet rabbit's remains as those of
the child and the consequent delay in discovering the true remains]), (3) the
negligent mishandling of a corpse (Darcy v Presbyterian Hosp., 202 NY
259, supra), and (4) the denial of access to control the body of a
deceased relative (Lando v State of New York, 39 NY2d 803, 805). In those
cases, this Court has recognized that there exists " 'an especial likelihood of
genuine and serious mental distress, arising from the special circumstances,
which serves as a guarantee that the claim is not spurious' " (Johnson v
State of New York, 37 NY2d, supra at 382).

(Lauer v City of New York, 95 NY2d 95, 114 [2000]).
Liability was also imposed in Lauer, where a coroner's failure to
disclose accurate autopsy results resulted in the plaintiff's being erroneously
suspected of the murder of his only son for a period of 17
months.

The Court does not doubt that Claimant was genuinely distressed by the events
giving rise to this claim because he had to miss his brother's wake and funeral
and the solace of family that he would have received at those events and
because, as he states in his post-trial brief (5

th page), he was no longer "able to trust [prison officials] or count on them
properly to do their job." It is not unusual and does not present a "special
circumstance" of the type and nature required for liability to be imposed,
however, for an individual to feel sadness at being unable to attend a
relative's funeral or for a prison inmate to question the accuracy and
reliability of prison officials. The type and degree of emotional distress
resulting from this administrative error does not rise to the level of
compensable harm as a matter of law.

The Chief Clerk is directed to enter judgment in favor of Defendant, dismissing
the claim.

Let judgment be entered accordingly.

January 11, 2006Albany,
New York

HON. RICHARD E. SISEJudge of the Court of Claims

[1] This statute also permits the Commissioner
to allow temporary release "to report to an induction center for the purpose of
being examined for possible induction into the armed forces of the United
States."